Striking a deal
Traditionally, a plea bargain occurs when a defendant agrees to plead guilty to one or more charges, often a lesser charge than what they’d face in trial, in exchange for a more lenient sentence. This also can include dismissing some related charges.
Clark County Prosecuting Attorney Tony Golik said he also considers any case resolved before trial — whether through a diversion program or therapeutic court — a plea bargain.
Golik said it’s rare that defendants change their pleas without some kind of deal, and in most cases, the prosecution offers some alternative to a trial.
There are a number of factors the prosecution considers when determining whether to make an offer: the facts and strength of the case, the defendant’s criminal history and age, and how egregious the case is, Golik said.
“Our job as prosecutors is to get a reasonable resolution and to make sure the defendant is held accountable,” he said.
On average, Barrar has handled about 100 cases a year for the last 25 years in Clark County, he said, and estimates about 95 percent of those were resolved with a plea deal.
He said the prosecution has the power to add or dismiss charges throughout the duration of a case, and that process can be used to force defendants into a “cubby.”
“In a perfect world, I would like to see people held accountable for what they did and not for their aversion to risk. And, I would like to see the prosecution prosecute cases that they can prove beyond a reasonable doubt,” Barrar said.
By the numbers
From 2009 to 2013, nearly 97 percent of all criminal Clark County Superior Court cases, on average, ended with plea bargains, according to the most recent data available from the prosecuting attorney’s office.
In 2013, about 58 cases went to trial of 2,358 felony cases filed that year. Of those cases filed, about 215 were dismissed, according to a Columbian analysis of court data.
Los Angeles criminal defense attorney Martin Lijtmaer says plea bargaining is critical to the criminal justice system because it helps alleviate case volume. He has handled cases in both federal and state court in California for the last five years, during which time he’s managed about 100 plea deals, he said.
Plea bargains offer certainty of outcome, which is a “power commodity in the criminal justice world,” he said in an email.
Defendants want to know what they’re facing and have some ability to alter the terms of the deal. Prosecutors want to get a conviction and not try the case when they have dozens of other cases on their docket that may go to trial, Lijtmaer explained.
“Jury trials are all-or-nothing affairs, and many defendants and attorneys prefer to have a certain result than to leave things up to 12 strangers who are notoriously unpredictable,” he said.
Additionally, the threat of mandatory minimums — sentencing laws that require specific prison terms for people convicted of certain federal and state crimes — make taking a plea deal more appealing, Lijtmaer said. Agreeing to plead guilty to a lesser crime that doesn’t have that mandatory minimum sentence is one of the only ways to prevent a lengthy prison stay.
In some cases, defendants elect to take a plea deal, despite being innocent, because they fear they could end up with more time after going to trial. Golik said he’s sure that this scenario has happened in Clark County at some point but said he thinks “it’s a very small percentage.”
“I’m not going to say it hasn’t happened here,” he said. “We do our best to make sure that isn’t happening. That would be the worst possible thing that can happen. … A significant job of the prosecution is to be confident that we are doing justice, not just seeking a sentence that we think we can get.”
But Joshua Alexander said it seems like prosecutors “are trying to get a win regardless.”
Jones, who’s now in prison for the vehicular homicide of Daniel Alexander, is scheduled to be released in the summer of 2017.
Joshua Alexander said he’s seen people with drug-distribution charges receive more prison time. He said there should be a requirement that any homicide case automatically go to trial.
“In a case like this, a plea deal shouldn’t be a small fraction of what the maximum penalty should be,” he said.